Person Sick on Couch

My Ex-Spouse is Sick and Can’t Pay Child Support

Person Sick on Couch

Recently, I wrote about a couple who were married for eleven years and had two children together. That post focused on a failed motion to gain overnight access. This post looks at a different issue from the same Ontario Superior Court of Justice decision released earlier this summer. This issue is a common source of conflict, when an ex-spouse says they are sick, can’t work and can’t pay child support. This claim is typically followed by an allegation that the medical condition is exaggerated.

 

My Ex-Spouse is Sick and Can’t Pay Child Support

The father in this case was unemployed and collected government assistance. He had a Master of Science degree in biology and computer science. He claimed that he was unemployed due to a medical condition that prevented him from working.

The mother argued that the father was capable of working and asked that the Court impute an income of $65,000 per year. The father argued that his medical condition prevented him from working and that no child support ought to be awarded.

These parents were in Court a few months prior and the father was ordered to provide a letter from his doctor explaining his health condition and how it impacted his employment. At the time of this decision, the father still had not complied with that Order and he did not have an explanation of why. While the pandemic situation may have been part of the reason, that argument becomes more difficult to make after seven months.

 

Child Support Calculation When a Parent Can’t Work in Ontario

The Judge in this case noted that the father still hadn’t provided any evidence on his medical condition. A failure to provide evidence and a failure to prove a claim of a medical condition was harmful for the father. When you can’t prove what you are claiming, a Judge simply can’t take your word at face value.

As this motion was simply for an interim child support award, the outcome wasn’t as significant. Typically with a Final Order, you must prove a material change in circumstance to get the Order changed. An interim award simply means that you can have the Order reviewed without establishing a material change in circumstance.

The Judge reviewed the law on imputing income for parents who are not working, or who are underemployed. The relevant law here is section 19 of the Child Support Guidelines (Ontario), which gives the Judge the authority to impute income. The Judge found that the evidence presented did not support the father’s medical claim. Based on his educational background and his work experience, the Judge imputed an income of $40,000 per year.

A $40,000 per year income for two children resulted in monthly child support of $597. The Judge specified that this was an interim Order and the father could have it reviewed once he provided medical evidence. The Judge also added that continued non-compliance with the Order to provide medical evidence would preclude the father from making further motions to the Court.

 

Doctors Looking at X-Ray
A proper medical diagnosis and prognosis from a doctor will assist in your claim.

 

I Am Sick and Can’t Pay Child Support in Ontario

There will be times where a medical condition prevents a parent from working. And likely there are times when a parent simply doesn’t want to work, potentially out of spite. Differentiating between these two scenarios is difficult. Nobody wants to force someone to work if there is a legitimate medical condition. On the other hand, making selfish decisions to the detriment to the children, only to get back at your ex-spouse, needs to be addressed.

If you are legitimately unwell and can’t work, gather some medical evidence to prove your claim. This medical evidence needs to provide sufficient information to the Court to prove what you are saying. It is quite common for doctors to provide “sick notes” that simply say you are sick and can’t work. This isn’t enough.

Proper medical evidence to prove your claim means a medical diagnosis as well as a prognosis. Specific medical issues are private and don’t necessarily need to be disclosed. But you do need to disclose what your limitations are and when those limitations will no longer impact your employment.

For physical injuries, this is very simple to address. For example, if you suffered a fall at work and broke your leg, it is easy to say that you can no longer perform your construction duties. Along with this statement will be a further statement that your recovery will take six weeks (as an example), at which time you will be returning to work.

 

Mental Health Conditions and the Impact on Child Support in Ontario

Mental health injuries are different and will require a lot more information than simply saying “can’t work due to mental health”. In the past, nobody spoke about mental health conditions, but these barriers are being broken down. Experiencing the trauma of a high-conflict divorce can create mental health issues, but you still need to have some prognosis for your recovery.

Mental health issues can cause conflict if one of the parties is not compassionate about the situation. Communication about the condition can alleviate some of the conflict.

If you are looking to have a Judge accept your evidence of a mental health diagnosis, then you need to file actual evidence with the Court. This can mean the current diagnosis, the current treatment schedule and the prognosis based on the treatment schedule. If you are looking for a finding that you are permanently unwell, then the evidence needs to be strong to support that claim.

 

The Difference Between an Interim and Final Child Support Order

Immediately after separation, child support needs to be paid. This means that the amount of child support is decided with very little information. For all parents who earn a salary, this isn’t an issue, as support will be owing based on your Line 150 of last year’s income tax return.

If the parent is earning an income through their own corporation, then the calculation is a lot more difficult. Many items can be lawfully deducted to reduce taxes owing. These same items can’t be deducted for the purpose of calculating child support owing.

This means that a Judge is making an informed guess on what level of support needs to be paid. As part of this guess, there is no live evidence and no way to test the truth of the statements being made. As such, the child support awarded is on an interim basis only. When new information is obtained, the interim order can be adjusted as necessary, which isn’t always possible on final orders.

A final child support (or spousal support) Order will be made after the parties agree or after a trial. At this point the Judge has weighed the evidence and made finding of fact to support the decision. This also relates to the medical evidence you need to prove your claim.

The doctor who provides the medical evidence may be subjected to cross-examination at trial. Likely this wouldn’t be necessary on an interim application, but come time for trial, this may happen. This is the opportunity for the skeptical ex-spouse to test the medical evidence.

 

Questions About Child Support Calculations in Ontario

Contact Hearty Law with any questions on child support, spousal support, or any other family law financial need. Hearty Law serves Toronto, Ottawa and surrounding communities.

To contact Hearty Law, either complete the contact form found here, or send an email to toronto@heartylaw.ca or ottawa@heartylaw.ca.

Money Over Time

Can I Appeal a Spousal Support Order in Ontario?

Money Over Time

Have you just been ordered to pay significant spousal support over an extended period of time? If so, you may be asking whether you can appeal this Order. Earlier this summer, the Ontario Court of Appeal reviewed the law in this area in making a decision. This decision demonstrated how and appeal of a spousal support order in Ontario is difficult.

 

What is Compensatory and Non-Compensatory Spousal Support?

In this case, the husband and wife were married in the United States where they lived for several years. The couple then moved to Ontario to allow the husband to take a position as a professor at a university. Prior to marriage, the wife worked full-time for eight years as a nurse’s aide. During the marriage, the wife worked part-time in modest positions whenever she could find them. She also stayed home to care for the children.

Compensatory spousal support is an Order to compensate a spouse who was placed in an economic disadvantage because of the marriage.  In this case, the wife sacrificed her own career as a nurse’s aid so that she could care for the family while the husband furthered his career. Put another way, the husband was only able to further his career because of the sacrifice of the wife. As such, the husband was ordered to compensate the wife through spousal support.

The law on non-compensatory spousal support is a little confusing at present. Typically this type of spousal support addresses the “needs and means” of the recipient spouse. In this case, non-compensatory spousal support was awarded because the wife had little means, while having significant needs in trying to maintain a similar standard of living post-marriage.

 

Amount and Duration of Spousal Support in Ontario

The amount of spousal support to be paid and the length of time it is to be paid is typically a matter that is contentious at trial. There is no strict rules on spousal support and it can be quite discretionary for the Judge. In this case, the marriage lasted five years and the husband was earning $146,000 per year.

The husband had argued that because of his significant debt, the payment of spousal support would cause undue hardship. The evidence demonstrated the husband had $347,000 in student-loan debt. The Judge found that this debt was solely for the benefit of the husband and therefore the wife need not suffer because of it.

In the end, the Judge ordered the husband to pay the wife $1,968 per month in spousal support for five years. This represented the low end of the spousal support advisory guidelines.

 

Appeal of a Spousal Support Order in Ontario

The husband appealed this Order to the Ontario Court of Appeal. The law on appeals of spousal support orders was reviewed. The leading case on the issue was a decision from the Supreme Court of Canada in Hickey v Hickey.

The Supreme Court found that Appeal Courts are not to interfere with a spousal support Order unless:

  • There is a demonstrated error in principle;
  • There is a significant misapprehension of the evidence; or
  • The award is clearly wrong.

In other words, appealing a spousal support order is extremely difficult. The only way to successfully appeal is if the Judge made an egregious error, which would be obvious when reviewing the decision. The Court of Appeal was not persuaded in this case and the spousal support order was not changed.

 

What Can I Do if I Don’t Appeal a Spousal Support Order?

If you don’t appeal the spousal support Order, you will be paying it for a period of time. Typically, you may only get the Order reviewed if there has been a material change in circumstance. This means that there has been a significant change in the evidence the Judge considered. This would include such items as a significant medical issue which reduces income, retirement at a reasonable age, involuntary lay-off, or some other significant employment change.

If your ex-spouse is seeking a significant amount of spousal support, seek legal assistance. In this case, the husband was self-represented and is now paying approximately $120,000 in spousal support. A small investment in some legal advice may prove to save you money over the longer term.

Contact Hearty Law for a consultation on spousal support, child support, custody, access, divorce, property division or any other family law issue.

Hearty Law serves Toronto, Ottawa and surrounding communities. Email toronto@heartylaw.ca or ottawa@heartylaw.ca for more information.

 

 

Pennies

Child Support Payments and Undue Hardship in Ontario

Pennies

Are child support payments causing undue hardship in Ontario? Federal legislation establishes child support guidelines. These tables are rigid and require child support to be paid based on the income of the parent paying support. Oftentimes, a parent will say that the child support amount is high and is causing undue hardship. Only a Court in Ontario can order a lower amount of child support. The Ontario Superior Court of Justice in Ottawa examined this issue in a written decision earlier this summer.  Much of that written decision was focused on custody and access. This article is only considering the argument on undue hardship as it relates to child support.

 

Paying Child Support is Causing Undue Hardship in Ontario

The mother and father in this case never married. Their relationship was short and their one child was born in 2017. The father is a police officer in the Pembroke area in Eastern Ontario. His most recent annual income was $105,785 per year. The mother is a nurse in Ottawa and her income was $66,000 per year.

Based on an income of $105,000 per year, child support for one child in Ontario is $925 per month. The father argued that paying $925 per month would cause undue hardship. His argument was based on:

  • $37,000 owed to his parents which was used to fund a criminal defence lawyer;
  • Payment of $620 per month in child support to his ex-wife to support his two children from a previous marriage;
  • Payment of significant expenses to support his two other children in their involvement in competitive hockey.

The father argued that the combination of these factors justified his request to have child support reduced. He also added to his position by arguing that the mother’s household had a higher standard of living than his.

 

The Law on Child Support and Undue Hardship in Ontario

The Judge reviewed the law on the facts to be considered in ruling on an application for undue hardship. In Ontario, the Child Support Guidelines are a regulation under the Family Law Act. Section 10 of that regulation provides a list of some of the factors in considering an undue hardship applications. A few of these factors are:

  • Unusually high debt levels incurred by supporting the children and other parent;
  • Unusually high expenses related to exercising access to the child;
  • A legal duty under a judgment to support another person;
  • A legal duty to support another child.

Further in that same section, there is consideration for the standard of living between the two households. This section includes a comprehensive test on comparing the standard of living.

 

Proving Undue Hardship in Ontario

In this case, the father’s application for undue hardship failed. While the Judge heard evidence of a $37,000 debt owing to the parent, the father failed to prove this debt. There was no contract, no promissory note nor any other documentation related to the debt nor the repayment schedule.

Next, the Judge looked at the $620 per month the father was paying in child support for his other two children. Again, there was no evidence that these payments were causing undue hardship. The father was paying a reduced amount of child support because the children were with him for a significant amount of time each month. While this may be considered a significant expense, the father still had an obligation to pay child support for the child that was the subject of this court case.

The Judge then considered the father’s income of $105,000 per year, as well as the income of his spouse of $38,000 per year. The father estimated his monthly household expenses were $2,000 per month. Given their respective income levels, his new spouse would also be expected to contribute to the household expenses.

Finally, the Judge reviewed the father’s proposed budget in detail. He noted claimed expenses of $600 per month in tobacco and alcohol, as well as $200 per month for meals outside the home. This combined for $800 per month and can’t be considered a justification for reducing child support.

In the end, the Judge found that the father failed to prove undue hardship. While earning over $100,000 and living in a rural community in Eastern Ontario, there was no evidence to prove undue hardship.

 

Comparing the Standard of Living Between Two Households

In this case, the father asserted that the standard of living in his house was less than that of the mother’s house. There was no evidence provided to prove this point. Legislation in Ontario provides a framework for how a standard of living is compared. This requires a detailed analysis of the budget for each household.

The formula examines all income and expenses for each house. The total amount is then divided by a “low-income measures amount” based on the number of adults and children in the house. This calculation results in a ratio, which is used to compare the two houses.

 

How to Prove Undue Hardship to Reduce Child Support in Ontario

In this case, the father did not prove undue hardship. If child support payments causing undue hardship in Ontario, or if your ex-spouse is attempting to increase child support, obtain some legal advice. Proving this can be difficult.

The most important aspect of this application is providing tangible evidence on your debts and expenses. Simply stating that you have a significant debt is not enough. You need to prove this debt, meaning proving where the money came from, what expense it went to pay for and how it is being repaid.

If you are arguing that your living expenses are causing undue hardship, then simple budget estimates are not sufficient. Using financial statements to prove your income and expenses will be useful in advancing your claim.

Contact Hearty Law today for a consultation on questions related to child support, spousal support, divorce, property division, hidden assets, concealed income and other family law financial need. All consultations are completed virtually, so you don’t need to leave the comfort of your own home. Send an email to toronto@heartylaw.ca or ottawa@heartylaw.ca or complete the contact form here.

Hearty Law serves Toronto, Ottawa and surrounding communities.

Calculation of Child Suport

RRSP Withdrawals Income for Child Support Purposes?

Calculation of Child Suport

Federal Child Support Guidelines provide a simple framework for determining the amount of child support to be paid. These guidelines simply takes the income of the parent paying child support and the number of children to determine the monthly amount. While this seems like a simple exercise, determining income can be complex. RRSP withdrawals can be considered income when calculating child support.

Yesterday I wrote about a recent decision from the Ontario Court of Appeal, where sole custody was awarded to the father. This post looks at the same decision, but on the issue of RRSP withdrawals and how they impact income for child support purposes.

 

Are RRSP Withdrawals Considered Income When Calculating Child Support in Ontario?

The couple in this case married in 2006 and separated in 2015. They had one child together, who was born in 2014. The 12-day trial for this high-conflict divorce was in 2018. The trial covered all aspects of the divorce, including custody, access, child support, spousal support and property division.

The father was awarded sole custody and the child was to live with each parent 50% of the time. To calculate child support owing, the guidelines were used by each parent and only the difference would be owing each month.

The father was found to have an income of $128,000 and the child support for one child at this income is $1,130 per month. The mother had employment income of $81,000 and the child support for one child at this income is $755 per month. This means that absent any other information, though the child split time equally between each residence, the father would pay the mother $375 per month.

However, the mother had an RRSP withdrawal of $59,000 per year, which increased her annual income for tax purposes to $140,000. This RRSP withdrawal was used to pay for her lawyer in the divorce. Child support for one child at $140,000 per year increases to $1,225. If the RRSP was considered income, it would mean instead of receiving $375 per month, the mother would have to pay the father $95 per month.

 

RRSP’s Can be Considered Income When Calculating Child Support in Ontario

To resolve this issue, the Judge reviewed the law on calculation of income. This included a review of a 2013 Ontario Court of Appeal decision on the issue. In that case, the father had made an RRSP withdrawal to assist with the purchase of a residence. The RRSP withdrawals in those circumstances were found to be income, as it was reported as income on his tax return.

The mother in the current case had made the $59,000 RRSP withdrawal to pay her lawyer. She argued this was a one-time, non-recurring payment, which did not increase her ability to pay support. The Judge didn’t agree. Effectively, the money was available to pay for lawyers, therefore it was also available to pay for child support.

The mother appealed this decision and the Ontario Court of Appeal made a ruling last month. The appeal was dismissed and the Court of Appeal found that the Judge did not make any error in including this amount in the mother’s income. The Appeal Court found that the Judge was alive to the potential issue of unfairness and the decision was reasonable.

 

Reasonable Actions Are Necessary During Divorce Proceedings

One other comment about this case needs to be made. The mother had argued in 2015 that the father’s RRSP withdrawal should be included in his income to determine child support. It was very harmful to the mother’s argument that three years prior she had argued for inclusion in the father’s income. Then, because it impacted her, she was argued that it shouldn’t be included in her income.

During prolonged divorce proceedings, it can be difficult to remember everything that has been done. Unreasonable actions can lead to your own arguments being used against you.

 

Prior to Making RRSP Withdrawals, Talk to a Lawyer

If you are in the midst of divorce proceedings consider your finances. All financial decisions you make can impact support payments and other property matters. Prior to making any significant financial decision, obtain some legal advice.

Contact Hearty Law with any questions on financial matters related to your divorce. Hearty Law will assist you with advice on child support, spousal support, hidden assets, concealed income, division of property and any other family law financial matter.

Email Hearty Law at toronto@heartylaw.ca or ottawa@heartylaw.ca.

Hearty Law serves Toronto, Ottawa and surrounding communities.

Supporting Child

Calculation of Child Support When a Parent is Underemployed

Supporting Child

When a parent is underemployed and earning far less than their capacity, a Court will impute income to calculate child support.  This issue was examined by an Ontario Court earlier this summer. The warring parents in that example provide a great look at the analysis required for determining custody. This blog post is limited only to the analysis on the calculation of child support.

 

What Does Underemployed Mean for Child Support Purposes

This couple lived together in a common-law relationship between 2006 and 2008. They had one child together who was born in 2008. After birth, the mother and child lived with the grandmother and the father remained involved with the child. Court proceedings were first initiated in 2011 and continued until now.

The mother is currently 47 years old and works for the federal government. The father is 48 years old and is a head chef in a local restaurant. Since a Consent Order in 2012 the father was paying child support based on an imputed income of $30,000 per year. The father provided tax returns which showed income between $0 and $13,000 between 2012 and 2018 and stated the reason for the low income was failed restaurant ventures.

The father was trained as a chef when the child was born and he has an obligation to support his child financially. In this case the judge found that considering his age, skills and experience, it was unreasonable for him to continue with failed business ventures. The alternative was to obtain a steady income so that he could support his child.

This is an example of underemployed. This means that a parent is earning less income than what would be expected when age, skill and experience is considered. There are far more egregious examples of parents who deliberately remain unemployed to avoid support payments. This is a good example of a parent who was working, but not earning enough.

 

Can Retroactive Child Support Be Awarded When a Parent is Underemployed?

In this case, the mother sought retroactive child support back to the date of separation (12 years ago). The Supreme Court of Canada has provided direction on this issue from a decision in 2006. There are two guiding principles when determining retroactive child support. First, both parents have an obligation to ensure proper support for the child’s benefit. The second guiding principle is that the payor parent has certainty in their debts.

There are then four factors to consider. First, whether the recipient parent had a reasonable excuse for not requesting child support earlier. Second, the conduct of the payor parent. Third, the circumstances of the child and fourth, the potential hardship for the payor parent.

In this case, the evidence was that the father paid child support for the first few years after birth. The mother never told the father she was seeking more support and there was no evidence that the father was putting his interests over the interests of his child. Based on all of this, the Judge decided that this was not an appropriate case for retroactive child support.

 

Child Support Arrears

In this case, the father went to Court in 2017 and obtained a Court Order rescinding the $11,500 he owed in child support. The mother did not attend Court, because she said she didn’t know about the application. The day after the Court Order was issued, the mother said she received the father’s application.

The mother asked the Court to set aside the earlier Order and have the father pay the $11,500. The Judge looked at the circumstances and found the way the events unfolded were unfair for the child. The father was again ordered to pay the $11,500 in child support that was owing.

 

What to do if you Have Child Support Arrears?

Child support arrears means that you still owe child support. If you can’t pay child support one month, it still remains owing. The longer you go without paying child support, the larger the debt becomes and this debt does not simply go away when you ignore it.

If you have significant child support arrears owing, you may want to get some legal advice. There may be an opportunity to lessen the amount, but whether or not this can happen is based on a number of factors. Most of the factors are based on your conduct. What is your financial situation and why you are in that situation is important. There is a difference between conducting yourself against the interests of the child and doing everything you can to support your child.

 

Is Your Ex-Spouse Underemployed?

If you believe your ex-spouse is deliberately underemployed to reduce child support obligations, you may want to seek legal advice. Some analysis must be done on that person’s age, skill and experience. As well, some thought must be put to the local economy and the ability to easily obtain employment. In these times of social distancing, though a parent may not be earning what they have in the past, this does not mean it is intentional.

If you have questions on child support, spousal support, access, custody, division of property or other family law matters, please contact Hearty Law. Alternatively, email toronto@heartylaw.ca or ottawa@heartylaw.ca.

Hearty Law serves Toronto, Ottawa and surrounding communities.

Veterans Affairs Disability Pension Considered Income for Support Purposes?

For military and RCMP members receiving a Veterans Affairs Disability pension, there is some confusion on whether or not the amount is included in income for child support and spousal support purposes. This blog post will discuss some factors that need to be considered in determining whether a Veterans Affairs Disability Pension is income for support purposes.

Prior to 2012, generally, the amount was included as income. As the pension is not taxable, the amount would be “grossed up” to the pre-tax equivalent. Support would then be calculated on that amount. Some confusion ensued with a Federal Court decision in 2012.

 

Veterans Affairs Disability Pension is Property not Income

In a case called Manuge, the Federal Court was asked to decide on a class-action brought on the government by 4,500 former members of the Canadian Forces. These members were receiving an insurance amount each month. The member was also awarded a monthly disability pension through Veterans Affairs. As a result, the monthly insurance award was reduced by the amount of the disability pension. The Court ruled that this wasn’t proper. The Veterans Affairs Disability pension was not income replacement. Rather, the pension was property. It was compensation for loss of amenities of life and for the personal limitations and sacrifices that arise from disabling injuries.

After this decision, courts across the country remain divided on the impact of this ruling on family law matters. It appears as though the first time this issue was decided after Manuge was in Alberta in 2013, where the court decided that the VAC disability pension was not to be included as income for support purposes. The one exception was for the monthly amount received for the children of the veteran.

This reasoning has been followed by other courts across the country, for example in Manitoba and  British Columbia.

Veterans Affairs Disability Pension is Income and not Property

In 2013 in Nova Scotia, the court decided on a case where the husband was a full-time active member of the RCMP, while also receiving a monthly VAC disability pension. In this case, the court rejected the reasoning from Alberta. The Court found that a decision on the contractual insurance obligations between the government and veterans was not applicable in the family law context. The result was that the monthly pension income was included in calculating support payments.

This was the same reasoning used to come to the same conclusion by both the Court of Appeal in British Columbia and the Court of Appeal in New Brunswick.

This issue was again argued in front of the Alberta Court of Appeal in 2017 and that Court ruled that the VAC disability pension was considered income. That decision was appealed to the Supreme Court of Canada who dismissed the application for leave with costs.

Is VAC Disability Pension Income or Property in Ontario

The decision from the Supreme Court of Canada is likely the last word on the issue. It may be possible that VAC disability pension amounts are income for support purposes. The Ontario Superior Court also had a decision after the Supreme Court of Canada decision. The Court in that case carefully reviewed all of the case law on the subject and came to the conclusion that a VAC disability pension was income and was to be included as income in determining child support and spousal support.

Of interest in the recent Ontario decision, that considered the issue when the amount received was a lump sum. The Court converted the lump sum into an annual amount based on a life expectancy to age 75. There will be times where certain facts may change the outcome of your specific case, as happened in the Manitoba decision.

In that decision the veteran was receiving a VAC disability pension due to a significant back injury. The monthly VAC payments were used for massages in excess of what benefits covered. In addition, the payments also went to cover the costs to hire someone for yard work and snow removal, as the veteran was unable to do it alone. This is a much different situation than simply taking the monthly VAC disability payments and increasing your standard of living.

What Can You do if You or your ex-Spouse is Receiving a VAC Disability Pension?

If either you or your ex-spouse is receiving a VAC disability pension, consider obtaining some legal advice. The question is Veterans Affairs Disability pension considered income for support purposes is not easy to answer. Depending on the amount, it can have a significant impact on monthly support payments. Each situation is different and your situation may differ from the cases that are discussed here. Everything in this article is for educational purposes only and do not constitute legal advice.

Contact Hearty Law for a virtual consultation to discuss your specific situation. Either complete the contact form found here or email toronto@heartylaw.ca or ottawa@heartylaw.ca.

Hearty Law serves Toronto, Ottawa, and surrounding areas.

Can I Sell the Matrimonial Home During a Divorce in Ontario?

One of the most often asked questions is what happens to the matrimonial home when a couple divorces. More succinctly: can I sell matrimonial home during divorce in Ontario? The issue becomes much more prevalent during a global pandemic, when there is much uncertainty in the housing market. This exact issue was decided earlier this summer in the Ontario Court of Justice.

How the Global Pandemic is Impacting Finances During a Divorce

The husband in this case was an eye-doctor, who had to close his two offices during the pandemic. While he will be reopening soon, social distancing will limit the capacity of patients in his offices and thereby reducing his income. He estimated that his income would be cut in half for the year, to about $66,000.

The wife was making over $100,000 prior to separation in 2019, but remains unemployed. She remains in the matrimonial home with the children. She is pursuing post-graduate education and is paying for a nanny.

The matrimonial home has approximately $1,000,000 in equity. The couple also own an investment property that has another $360,000 in equity, though the rent received barely covers the mortgage costs.

The judge noted in this case that the family’s finances were dire prior to separation. Now the husband is making less money and is supporting the matrimonial home and his own residence. Though the husband was ordered to pay child support and spousal support prior to the pandemic, due to his dire financial situation, he has been unable to make those payments.

The husband asked the wife to support his request to the bank to receive relief from making the mortgage payments during the crisis. The wife refused, as she did not want it to impact her credit rating. The husband then asked the wife to consent to the sale of the two properties and the wife refused. The husband then turned to family court to obtain an Order to sell both properties.

Keeping the Children in the Matrimonial Home

The wife opposed the application arguing that the husband was being aggressive with litigation, which wasn’t in the best interests of the children. She further argued that the husband could access savings and investments to meet his current financial obligations. Further, by forcing a real estate sale in a depressed market was financially irresponsible and not child-focused.

Effectively the wife was arguing that the children needed the stability of remaining in the matrimonial home, as that was the only home they knew. Given the current upheaval in their lives with the ongoing divorce, remaining in the matrimonial home was necessary for their well-being and they would be homeless if sold.

The Law on Ordering the Sale of the Matrimonial Home in Ontario

The Judge reviewed the applicable legal principles and concluded that it was the wife (who opposed the sale) that needed to establish a sufficient reason, recognized in law, why the court should exercise its discretion to refuse a sale. The Judge also noted that it is not common for the matrimonial home to be sold so early in the proceedings.

While it may be a preference to have the children remain in the matrimonial home, that is not sufficient legal justification. If the wife were to rely on this argument, she would have had to prove that there would be a negative impact greater than the inevitable adjustments and disruptions from moving and having their parent divorce. Further to this, it was important to note that the sale of a house in the summer may prove to be easier for children in their transition to a new school year.

One final point the Judge considered was the potential prejudice that may be suffered with potential equalization payments or other issues that still need to be decided at trial. Effectively the issue is whether or not the forced sale during a pandemic and uncertain economic times could be remedied at a later time.

Selling the House to Access Equity

Sell matrimonial home during divorce Ontario? Not surprisingly the Judge noted that both parties were arguing financial hardship while they had more than $1.3 million in equity in their real estate. The wife had argued that forcing the sale of the house may cause her and the children to be homeless. This wasn’t a reasonable argument in light of the fact that she would have more than $600,000 to use towards a new purchase.

The Judge also commented that the wife was acting unreasonably by refusing to consent to the sale of the investment property. This would not have had any impact on the children. And further, the wife was misguided in refusing to consent to the mortgage relief. Her concern for her credit rating paled in comparison to potentially losing the home during a bankruptcy.

How to Prove the Need to Sell the Matrimonial Home

There are some lessons that can be learned here. The first is that Justice Pazaratz is very direct in his approach. He stated the following in relation to legal proceedings in a pandemic:

Business as Usual? Gone.

Nonsense as Usual? Here to stay.

As is often the case, both parties were declaring financial ruin to the Court. They added to their financial difficulties by paying lawyers to argue which party is in greater financial distress. A little concession on either side could have saved a lot of time, money and angst.

How do you prove the matrimonial home needs to be sold? You need to prove that it is necessary at the time you are seeking the Order. And if you are opposing it, you need to have tangible evidence to do so. Simply saying that you want stability for the children is not evidence. Likewise, a preference for the home is not evidence. This is the unfortunate situation where financial realities will supersede the emotional ties to the residence.

 

Next Steps…

Sell the matrimonial home during divorce Ontario? Are you looking to sell the matrimonial home or want to oppose its sale? You need legal advice. A small investment in some legal advice makes sense. The value of the matrimonial home can be significant.

Contact Hearty Law or email toronto@heartylaw.ca or ottawa@heartylaw.ca for more information.

Hearty Law serves the Toronto, Ottawa and surrounding communities.

Moving Boxes

Changing Primary Residence of Children Before School

Moving Boxes

Summer holidays bring a change to routines. As the summer winds down there is often thought to keep the changes in place. This can mean changing primary residence of children before school results. Which in turn results in urgent motions to change residence before school starts. Last week, a decision from the Ontario Court of Justice addressed this issue.

Justice Pazaratz authored this decision and as often the case, it was very colourful. I don’t often quote directly from decisions, but I can’t portray his intent the way he can:

The pre-Labour-day “let’s change Johnny’s school” urgent motion has become somewhat of an unwanted annual tradition in family court. Sometimes it’s just the school. Sometimes it’s the city where the child is to live. Usually it involves an attempt to change the child’s primary residence from one parent to the other… Quite commonly, these motions arise when an access parent unilaterally decides that children shouldn’t be returned at the end of a summer vacation. And invariably this leads to “emergency” motions, and a flood of frightening – and entirely untested – affidavits and allegations… So every August (sometimes even September) judges receive these “the sky is falling” motions, in which one parent suddenly insists that problems which may have existed for years suddenly need to be resolved in days.”

 

Changing My Child’s School at the End of Summer Holidays

In this case, the parents married in 2003 and separated in 2013. They had three children, who at the time of the decision, were 15, 13 and 10. Immediately after separation, the parents agreed that the mother would move with the children from Ontario to St. Louis, Missouri.

Since 2013, the children continued to reside in St. Louis most of the year. Often the children spent about 9 weeks each summer with their father in Ontario. For this visit, the children arrived in Ontario on June 20, 2020, and were scheduled to return to their mother on August 9, 2020. On July 22, 2020, the father brought a motion to change the parenting arrangements and have the children live with him.

The father filed an affidavit and alleged his 15-year old child was not comfortable living with her mother in St. Louis. Allegedly the mother did not support the sexual orientation of the child. This caused the child to want to change her residence.

The father added that his house was better suited to care for the three children. He said he lived in a 5-bedroom house, while the mother lived in a small duplex. The mother also had two other children with her new husband, so the father said that the mother wasn’t able to properly care for all of the children.

The Judge declined to exercise jurisdiction as the children were primarily in St. Louis. All of the evidence needed to support the mother’s version of events were all in St. Louis. This included teachers, doctors and other support persons in the community. The result was the father was not successful in his application.

 

Changing Primary Residence of the Children Before School

The father was not successful with his application, but there is much to learn from the decision. Parents often struggle with requests from children to change residence. Sometimes it may be for good reason, sometimes not. If you are considering making an application to have your children move in with you, here are a few points for consideration.

First, don’t expect a Judge to make a drastic change to the routine on short notice. A change in custody is a significant change for the children. This application needs to be made after much thought and reason and in the best interests of the child. Making this change on an urgent motion is not a good idea, unless it truly is urgent. For this type of situation, urgent means criminal charges laid by police, or involvement by Children’s Aid.

Second, ensure you have evidence that supports your application. While your perception may be that the other parent is awful, consider how you can prove this. Tangible evidence is necessary, so your opinion will not carry any weight. Effectively, if you say the other parent is awful and they respond they aren’t, the Judge will not make a drastic change.

Third, have a plan in place. Know where the children will sleep and where they will go to school. Have clear evidence of this laid out for the Judge and you will increase your likelihood of success.

Fourth, give serious consideration to the needs of the children. Changing houses, cities or schools is not easy. While it may seem easy for the children to pack up and move, it likely isn’t as simple as it seems. Life altering decisions should not be left to urgent motions. Children need stability and you need to support the children in that quest.

 

How to Make an Application to Change Custody in Ontario

The best advice I can offer is that a change of custody is not urgent, unless the evidence makes it urgent. If your evidence to make such a change relies on observations from years prior, it isn’t urgent.

Urgent applications to change custody means that there is one event that necessitates the application. Likely the only real evidence that requires an urgent application is when the child is in imminent danger. This will likely require police involvement, or Children’t Aid involvement. And simple involvement, such as an investigation, is not sufficient.

What is a Material Change in Circumstance?

Before a Judge will consider changing a custody arrangement, you need to prove there is a material change in circumstance. This means that something drastic has changed since the current Court Order was made. Some things that can prove a material change in circumstance are: an involuntary change in employment or a medical diagnosis for the children or a parent. These are life altering events, so consider what your evidence is to begin the application.

If you can prove a material change in circumstance, the next hurdle is to examine the evidence you have. If the other parent is going to argue against your application, consider the strength of their argument. When you start making allegations of poor parenting, expect similar allegations in return. How you respond to the allegations will be important.

It is important to remember that allegations of poor parenting are very rarely helpful for the Judge. That may change if the evidence of poor parenting is in the form of opinion evidence from a parenting expert. Keep in mind that Judge’s don’t want to hear about all of your differences in opinion. It may be important to you, but if it has no impact on the best interest of the children, it won’t be important to the Judge.

 

How Much Does it Cost to Apply to Change Custody in Ontario

As with everything else in family law, the cost is wholly dependent on the reaction of the other parent. If the other parent simply agrees with your request, the cost is minimal. If the other side disagrees with everything you are saying, it is likely you are heading to trial.

Applications to change custody will not be successful on an urgent motion argued on affidavit evidence. The case discussed above is a perfect example. Swearing an affidavit stating the other parent does not support the sexual orientation of the child is not helpful. When the response Affidavit is the parent swearing that the child is supported, the Judge will not make any finding.

If the motion simply can’t be heard on affidavit evidence and a trial follows, the costs rise significantly. Trials are expensive both financially and emotionally. Take a critical examination of the evidence you have prior to scheduling a trial. While you may really want a change in custody, be realistic of the outcome prior to making your decision.

 

I Want to Apply to Change Custody in Ontario

If you are considering applying for a change in custody, consider obtaining some legal advice. These applications are not easy and effective legal advice at the beginning can save you a lot of stress.

Hearty Law provides legal services on all family law issues, including:

  • custody
  • access
  • child support
  • spousal support
  • divorce
  • separation
  • property distribution

Contact Hearty Law today to schedule a virtual consultation. Either complete the contact form here, or send an email to toronto@heartylaw.ca or ottawa@heartylaw.ca.

Hearty Law serves Toronto, Ottawa and the surrounding areas.

Virtual School

Separated Parents Disagree – Back to School or Online School

Virtual School

Last week, the Ontario government announced plans for the return of children to the classroom. This has caused instances where separated parents disagree – back to school or online school? There is no easy answer to this and with the deadline looming for a decision, it may feel a little overwhelming.

Sadly, some parents use this as a way to impose their will and yet another tool in their arsenal to increase conflict. The reality is that the needs of each child are different and the needs of each family are different. This article will not provide you with any answer, but rather will offer a few points for consideration. I am hopeful that reasonable parents will be able to collaborate and make the right decision.

 

When Does a Decision Have to Be Made on the Type of Schooling for Ottawa Students?

Most school boards in Ottawa require a decision in the very near future on what parents are deciding. It is a true game of the chicken and egg. Parents don’t want to make a decision until they have more information. Alternatively, school boards can’t provide more information until they have information on the number of students attending.

Unfortunately a decision needs to be made soon. While it is possible that school boards may extend the deadline for a decision, the start of school is only a few weeks away. The majority of separated parents have joint custody, which means that the parents need to agree on what is in the best interests of the child.

 

Separated Parents Disagree – Back to School or Online School?

When parents can’t agree on virtual school or in-class schooling, the first call may be to their lawyer. Though I am a lawyer, I don’t agree with this course of action. In my opinion, a mediator is the better person to turn to. While going to Court is an option, it is expensive, and one person will walk away angry at the decision.

There is no case law on this issue yet and even if there was, it may not be helpful. The legal framework for resolving this decision is “the best interests of the child”. This means that a change in a few factors will result in a very different outcome. What is right for one family, may not be right for the next.

Very early on in the pandemic situation, Justice Pazaratz issued a decision that remains relevant to this day. In that case, the mother attempted to stop all access by the father. Her reasoning was that she was social distancing with the children. Clearly her application was not successful. There is one paragraph in that decision that is very helpful:

Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there’s a problem. What we’re looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.

 

How to Decide Back to School or Virtual School

The best advice I can provide is don’t insist you are right. No matter how certain you believe you are right. If both parents insist they are right, conflict rises and nobody wins. Communication is necessary on both sides. Though difficult, work hard to understand why the other parent is taking the position they are.

There was a decision last month in the Ontario Superior Court of Justice that provides a little insight into how a Judge makes a decision. In that case, the father was planning to take the child to a cottage for a holiday with extended family.

The Judge said: “I find I can take judicial notice of other government information that is widely available in the public domain about COVID-19 social gatherings.” This means that a Judge will not attempt to offer a medical opinion. Further, the Judge will not rely on an unqualified parent to provide a medical opinion. Rather, the Judge will review the significant information provided by Public Health officials. With that information in hand, it will be applied to the situation your child is in.

With the knowledge on how a Judge will decide, parents can save themselves thousands of dollars. Rather than waiting for the Judge to decide, review the publicly available health information. Public Health officials are saying they are sending their children back to school. This isn’t the right decision for every child, but it is instructive.

 

Considerations for Sending a Child Back to School

Is there someone in the family that is vulnerable to an outbreak? If so, my reading of the public health directives is that it may be best to keep your child at home. If you are a parent who insists the child go to school, against the insistence of the other parent, stop for a moment. Stop to understand why the other parent is insisting on keeping the child at home.

If part of your decision making involves a medical diagnosis of another person, reconsider. A Judge is not a medical expert, so conduct a meaningful self-reflection on the strength of your position. If your evidence is that the medical diagnosis of another person isn’t correct, you won’t be successful. The Judge will likely accept the diagnosis of a medical professional and make a decision with that point presumed to be true.

 

Five Considerations – Back to School vs Virtual School

  1. Truly listen to the other parent. If their decision doesn’t make sense, say that in a positive way. Meaningful negotiation can’t happen if you don’t understand why the other side wants a certain thing.
  2. Truly think about why you are insisting on a particular course of action. Be realistic and honest with yourself. Are you just disagreeing with the other parent because you feel you have to disagree?
  3. Reflect on your child’s medical information. Is there a diagnosis that makes the decision easy?
  4. Reflect on the medical diagnosis for each person your child is in contact with regularly. Don’t question the medical diagnosis, but consider whether the diagnosis is helpful in coming to a decision.
  5. What are the best interests of the child? Are there mental health concerns that sway the decision one way or the other? If you believe there are mental health concerns, is there medical evidence that supports your belief?

 

The Practical Realities of Going Back to School

Practically speaking, it is quite possible that it is too late to have a Judge make a decision for the start of school. While parents can change their mind into the school year, the longer the child is successful in whatever the current situation is, the status quo will likely win out.

If a Judge isn’t going to make the decision for you, the parents are going to have to decide on their own. If one party continues to be unreasonable, look elsewhere for a resolution. Reach out to mediation, or to an independent third party you both trust.

Meaningful negotiation on this point has to go beyond both sides insisting they are right. You know your child and their needs far better than a Judge. These are unprecedented times, but your decision making process needs to be the same, no matter the issue. The only consideration a Judge will have is the best interests of the child. That needs to be your only consideration as well.

 

Need Some Legal Advice

Separated parents disagree – back to school or online school. If this is applicable to your family, contact Hearty Law today for more information. Hearty Law provides legal services on all family law financial issues. This includes, hidden assets, concealed income, child support, spousal support, retroactive support, division of property and all other needs.

Contact Hearty Law by completing the contact form found here or by emailing toronto@heartylaw.ca or ottawa@heartylaw.ca.

Hearty Law serves Toronto, Ottawa and the surrounding communities.